During the night of December 23-24, 2003, the defendant’s infant son suffered fractures to his right upper arm, clavicle, ribs, vertebrae, both femurs, and his right lower leg. The only people present in the apartment aside from the infant were the defendant and the defendant’s boy friend, Shawn Cambra.
A Bristol County grand jury returned two indictments against the defendant. The first charged her with committing an assault and battery on a child under fourteen years of age causing substantial bodily injury. G. L. c. 265, § 13J (b), second par. The second charged her with wantonly and recklessly permitting an assault and battery on a child that caused the child substantial bodily injury. G. L. c. 265, § 13J (b), fourth par. At defense counsel’s request and with the Commonwealth’s eventual agreement, the judge instructed the jury that they could consider whether the defendant recklessly endangered her child in violation of G. L. c. 265, § 13L, as a lesser included offense of the offense charged in the second indictment. The jury acquitted the defendant of the offenses charged in the indictments but found her guilty of the lesser included offense.
The defendant filed a motion to vacate the conviction, claiming that the crime of reckless endangerment of a child was not a lesser included оffense and that the jury instruction to the contrary that her counsel had requested should not have been given. The judge denied the motion. The defendant appealed, reasserting this claim of error, and also claiming that the Commonwealth’s expert witness at trial impermissibly offered an opinion on the ultimate issue in the case.
A divided panel of the Appeals Court affirmed the conviction. Commonwealth v. Roderiques,
1. Background. We summarize the evidence before the jury. In December, 2003, the defendant, aged seventeen, lived in a New Bedford apartment with her infant son, then seven weeks old, and Cambra. The apartment contained five rooms — a living room, kitchen, bathroom, and two bedrooms. The front door of the apartment led into the living room, through which the other rooms were accessed. The defendant’s father, Rene Roderiques, was then living with his girl friend and her daughter at another location in New Bedford. Rene kept in contact with the defendant, stopped by the apartment almost daily, and would drive the defendant anywhere she needed to go.
On the afternoon of December 23, 2003, Rene and the defendant took the infant to the pediatrician, because the infant was displaying flu-like symptoms and had kept the defendant awake throughout the previous night. The doctor gave the baby an eleсtrolyte solution and advised the defendant to administer more to the infant that night. Apart from the flu symptoms and a small bruise on his cheek, nothing out of the ordinary about the infant was observed during the visit. The defendant returned to the apartment, and she and Cambra were the only people to have contact with the baby that night.
The defendant put the infant to sleep on one of the recliner chairs in the living room. She and Cambra slept on the pull-out sofa bed, with their heads at its foot, right next to the infant’s recliner. The defendant, who described herself as a heavy sleeper, explained that she wished to ensure that she would hear the baby if he stirred. When the sofa bed was extended, it touched the recliner on which the baby slept, thereby bisecting the room.
At approximately 9 a.m., the defendant woke up with Cambra still sleeping beside her and the bаby still asleep on the reclinen She began to dress the baby, who had a 10 a.m. doctor’s appointment for an unrelated condition. It was at that point that Cambra alerted the defendant to a large bruise extending all the way around the infant’s right arm. The defendant telephoned her father and, in a hysterical voice, told him that the infant’s arm had been dislocated. Rene and his girl friend’s daughter arrived shortly thereafter. They discovered the infant lying on a bed crying, with Cambra sitting beside him. The infant’s arm was bent and red. They rushed him to a local hospital where he was examined and later flоwn to Children’s Hospital in Boston.
Two New Bedford police detectives observed the baby at the hospital in New Bedford. One of them testified that the baby had a big red bruise on his upper right arm, a bruise on his nose, a bruise forming on his left cheek which extended to his ear, and bruising on the abdomen and upper thighs. The baby was not crying and not in visible distress. When the infant was finally examined at Children’s Hospital, doctors discovered that he had suffered a fracture of the right upper arm, multiple fractures to both legs, rib fractures, a compression fracture of the spine, and a fractured clаvicle.
The defendant was interviewed at the New Bedford hospital by Detective Eric Swenson of the State police and by an investigator with the Department of Social Services. She initially stated that she had slept in her bed that night and that the baby had slept in his bassinet. She had fed the baby at 2 a.m. and 6 a.m., discovering nothing amiss, and had otherwise not heard the baby cry or scream that night. When Detective Swenson asked her whether she knew who injured the baby, she responded with “[sjomething to the effect of, ‘It wasn’t me. It must have been [Cambra].’ ” She further admitted to yelling sometimes at the baby, and that particularly throughout the night of December 23 and 24 Cambra had been yelling at the baby to stop crying.
Cambra was also interviewed at the police station. Cаmbra told the police that the defendant must have hurt the baby because he had not. Cambra also related that on December 23 he had been playing “air drums” with the baby, a maneuver in which he grabbed the infant’s arms and waved them around in the air as if the baby were playing drums. In regards to that night, Cambra stated that he and the defendant slept on the sofa bed and the baby slept on the recliner. He also said that, because he slept on the portion of the sofa bed oriented toward the apartment’s front door, it would be necessary to step on the recliner if he wanted to access the bathroom. Cambra did recall getting up to use the bathroom or to get a drink of water, and claimed that it was possible that he had stepped on the baby, though he did not think that had happened. He claimed, however, to have some medical conditions that might have caused him to black out and lose consciousness at some point.
Both the Commonwealth and the defendant introduced expert testimony concerning the extent and causes of the baby’s injuries. Dr. Jennifer Denton, one of the doctors who evaluated the baby at Childrеn’s Hospital, testified on behalf of the Commonwealth. She explained that the baby’s injuries were usually produced through various mechanisms. The break in the lower right leg was a so-called “bucket handle fracture,” produced by a forceful pulling or twisting at the end of the limb and a frequent component of what is known as “shaken baby” syndrome. The compression fracture to the spine was produced by a force that traveled along the spine vertically, such as the force generated when a child is slammed down on his buttocks. The remaining fractures were the product of general trauma; in particular, the broken right femur was a very unusual break, which could not have been done without significant force, even to an infant. These injuries would have been painful to the baby, and he would have cried and been difficult to console.
Dr. Janice Ophoven, a licensed physician and forensic pathologist from Minnesota specializing in injuries to children, testifiеd on behalf of the defendant. Having reviewed all of the baby’s medical records, she concluded that the injuries were consistent with having occurred between December 23 and 24. She further testified that someone stepping hard on a baby in the process of getting in and out of a recliner could produce multiple fractures. The bucket handle fracture could have been caused by means other than by pulling or twisting the limb. Ophoven testified that the baby would have cried at the time of the injury, but it is unpredictable how long a baby will cry after an injury, especially because this baby was not crying when he arrived at the hospital. In her view, it was possible that the baby could have received the injuries by being stepped on, but she would need more information about the exact circumstances, and she could not say with certainty what had happened to the baby.
2. Discussion. The defendant first contends that the judge erred in instructing the jury that reckless endangerment of a child, G. L. c. 265, § 13L, is a lesser included offense of wantonly or recklessly permitting another to commit an assault and battery on a child, G. L. c. 265, § 13J (b), fourth par. She argues further that even if it were a lesser included оffense, there was no factual basis in the evidence on which giving the lesser included instruction was appropriate.
A “lesser included offense is one which is necessarily accomplished on commission of the greater crime.” Commonwealth v. Porro,
When statutory crimes can be violated in multiple wаys, comparison of their elements must focus on the specific variations that the defendant is alleged to have committed. For example, if a greater offense contains two independent theories of liability, it is sufficient that a lesser offense be subsumed within the particular theory that was alleged. See Commonwealth v. Ogden O., supra (assault and battery by means of dangerous weapon is lesser included offense of mayhem [second theory]); Commonwealth v. Dixon,
With these principles in mind, we turn to the two statutes involved in the present case. General Laws c. 265, § 13J, describes four variations of the crime of assault and battery on a child. The variation alleged in the defendant’s second indictment provides:
“Whoever, having care and custody of a child, wantonly or recklessly permits substantial bodily injury to such*422 child or wantonly or recklessly permits another to commit an assault and battery upon such child, which assault and battery causes substantial bodily injury, shall be punished by imprisonment in the state prison for not more than five yeаrs, or by imprisonment in a jail or house of correction for not more than two and one-half years.”
G. L. c. 265, § 13J (b), fourth par. A “[cjhild” is defined as “any person under fourteen years of age.” G. L. c. 265, § 13J (a). General Laws c. 265, § 13L, provides in relevant part:
“Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished by imprisonment in the house of correction for not more than 21 k years.
“For the purposes of this section, such wanton or reckless behavior occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury or sexual abuse to a child. The risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”
A “[cjhild” is defined as “any person under 18 years of age.” Id.
Comparing the elements of each offense reveals that the elements of § 13J (b), fourth par., encompass all the elements of § 13L. Thе elements of § 13J (£>), fourth par., are (i) a child under fourteen; (ii) in care and custody; (iii) a substantial bodily injury; (iv) the defendant wantonly or recklessly permitted this substantial bodily injury, or wantonly or recklessly permitted another to commit an assault and battery on the child causing substantial bodily injury. The elements of § 13L are (i) a child under eighteen; (ii) a substantial risk of serious bodily injury or sexual abuse; (iii) the defendant wantonly or recklessly engaged in conduct that created this substantial risk, or failed to take reasonable steps to alleviate such risk where there is a duty to act.
The third element of § 131 (b), fourth par., substantial bodily injury, necessarily includes the second element of § 13L, substantial risk of serious bodily injury or sexual abuse.
The final element of § 13J (b), fourth par., criminalizes child abuse resulting from acts of omission. See Commonwealth v. Garcia,
In sum, because each element of § 13J (b), fourth par., encompasses a corresponding element of § 13L, and because there are no additional elements in § 13L that are not in § 13J (b), fourth par., § 13L is a lesser included offense of § 13J (b), fourth par. See Commonwealth v. Porro, supra at 531; Commonwealth v. Martin, supra.
We now turn to the question whether, based on the evidence at trial, the judge erred in instructing the jury on the lesser included offense. Lеsser included instructions are appropriate where “the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.” Commonwealth v. Souza,
The defеndant and the Commonwealth agree that there was no view of the evidence on which the elements unique to § 13 J (b) — care and custody, and causation of substantial bodily harm — were not present, but the elements common to § 13J (b) and § 13L were present. If the defendant was awake during an intentional battering of the baby, she committed both crimes; if she was asleep or the injuries were inflicted accidentally by Cam-bra, she committed no crime.
The familiar standard used to analyze a claim of ineffective assistance of counsel is “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprivеd the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Watson,
Here, counsel’s decision to request the lesser included instruction was a tactical decision that was far from manifestly unreasonable when made. A violation of § 13J (b) is a felony punishable by up to five years in State prison. A violation of § 13L, on the other hand, is a misdemeanor punishable by up to two and one-half years in a house of correction. The baby’s injuries were extensive and plainly caused on an evening when only Cambra and the defendant were present. In addition, the defendant had initially lied to the police about where the baby was sleeping that night. In light of this evidence, defense counsel readily recognized that the jury might be reluctant to acquit the defendant and, at the same time, might also be reluctant to convict the defendant for the greater offense if they believed that Cambra intentionally inflicted the baby’s injuries, and if conviction for a lesser offense were available. Because there was no rational view of the evidence that permitted conviction of the lesser offense but not the greater offense, this instruction gave the defendant a benefit to which she was not entitled. Counsel’s request for the lesser included offense thus “shows a reasoned tactical decision which succeeded and, here, worked no injustice to the defendant.” Commonwealth v. Bynoe,
A substantial risk of a miscarriage of justice exists “if we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave,
Here, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore,
Further, having сoncluded that § 13L is indeed a lesser included offense of § 13J (b), we discern no merit in the defendant’s concern that the Commonwealth tried its case based on the elements of § 13J (6), and that the jury therefore might not have fully considered the evidence in relation to the elements of § 13L. The elements that the two statutes share in common are, on close examination, essentially identical, and the Commonwealth’s required proof was the same for both.
Finally, one factor to be considered in determining whether an error has created a substantial risk of a miscarriage of justice is whether defense counsel’s failure to object was simply a reasonable tactical decision. See Commonwealth v. Dargon,
We next turn to the defendant’s contention that the Commonwealth’s expert, Denton, impermissibly offered an opinion on an ultimate issue in the case. Denton testified that, in her opinion, the baby’s injuries were “not accidental” and certain of the baby’s injuries could not have been caused by a man stepping on the child while asleep in a recliner.
“The purpose of expert testimony is to assist the trier of fact in understanding evidence or determining facts in areas where scientific, technical, or other specialized knowledge would be helpful.” Commonwealth v. Pytou Heang,
When medical expertise is necessary to aid understanding evidence, experts may testify as to the cause of a victim’s injuries. “An opinion within the domain of the expert’s professional knowledge may be admissible even if the expert’s testimony touches on the ultimate issues before the jury.” Commonwealth v. Woods, supra at 374-375. See Commonwealth v. Azar,
Judgment affirmed.
Notes
Even a more restrictive threshold in the second statute would not prevent it from being a lesser included offense, where it is undisputed that the age of the child is under both thresholds. See, e.g., Commonwealth v. Walker,
The terms “ [substantial bodily injury” in G. L. c. 265, § 13J (£>), аnd “[sjerious bodily injury” in § 13L have essentially identical meanings. General Laws c. 265, § 13J (a), defines “[substantial bodily injury” as “bodily injury which creates a permanent disfigurement, protracted loss or impairment of a function of a body member, limb or organ, or substantial risk of death.” General Laws c. 265, § 13L, defines “serious bodily injury” as “bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death.”
By the same logic, the other alternative for fulfilling this element of G. L. c. 265, § 13L — “wantonly or recklessly engaging] in conduct that creates a substantial risk of serious bodily injury” — is a lesser included offense of G. L. c. 265, § 13J (b), second par., which prohibits committing an assault and battery on a child that causes substantial bodily injury.
On the defendant’s theory, she may have acted in poor judgment by setting up the sleeping arrangements in such a way that Cambra would be forced to climb over the baby’s recliner (or over herself) in order to access the bathroom. While mindful that a lesser included instruction is appropriate where supported by “any hypothesis of the evidence,” Commonwealth v. Porro,
Appellate counsel, who was also trial counsel, made no claim that the defendant was deprived of effective assistance of counsel at her trial. We nonetheless reach this issue now where its resolution is readily apparent on the record. See Commonwealth v. Zinser,